Peter Alexander Ross v Attanta Ltd
| Jurisdiction | England & Wales |
| Judge | Patricia Robertson |
| Judgment Date | 09 March 2021 |
| Neutral Citation | [2021] EWHC 503 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2019-000661 |
| Date | 09 March 2021 |
[2021] EWHC 503 (Comm)
Patricia Robertson QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case No: CL-2019-000661
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice,
Rolls Building, Fetter Lane,
London, EC4A 1NL
Michael James (instructed by Pure Legal Limited) for the Claimants/Respondent
Peter Knibbs (of BPE Solicitors LLP) for the Defendant/Applicant
Hearing dates: 22 February 2021
Approved Judgment
Patricia Robertson QC:
Introduction and preliminary matters
The Defendant, Attanta Limited, is a company providing financial advice, against whom the Claimants bring a claim in respect of allegedly negligent advice provided to them by an employee of the Defendant when they remortgaged their home in May 2007. The Defendant applies for summary judgment to be granted in its favour pursuant to CPR 24.2 or in the alternative for an order striking out the Particulars of Claim pursuant to CPR 3.4.
I should record that I was asked to and did grant permission pursuant under Schedule 3 paragraph 1(2)(b) of the Legal Services Act 2007 for Mr Knibbs, the Defendant's solicitor, to appear on the Defendant's behalf, on the footing that whilst he does not have Higher Court rights, he has significant experience of advocacy in the lower courts and his familiarity with the case made this a desirable cost saving measure on a one off basis. If in future Mr Knibbs wishes to appear in the Higher Courts on a regular basis then it will of course be necessary for him to seek Higher Court rights.
Self-evidently, and as is common ground, the primary limitation period under section 2 of the Limitation Act 1980 has long since expired. The first plank of the Defendant's application is a limitation point, namely that s14A(4)(b) is not available to the Claimants and that the Court should so decide at this stage. Secondly, and more broadly, the Defendant submits that the statements of case disclose no reasonable grounds for the Claim and/or the Claimants have no real prospects of succeeding.
Since the application was proceeding as a heavy application under the Commercial Court rules, the Claimants' evidence in response was due 28 days after service of the application on them some 10 months ago, but that evidence was not served until 14:39 on 12 February 2021, a timescale which, nonetheless, would have complied with the requirement under CPR Part 24 that evidence be served 7 clear days before the hearing, had that been the applicable rule. There was no adequate explanation, other than oversight, for this.
The evidence in question comprised a witness statement from the Claimants' solicitor, Mr McBride, to which were exhibited witness statements for each of the Claimants (in largely identical terms) and an expert report, on the footing that this was evidence they would be in a position to deploy at trial and which should therefore be taken into account in determining whether there were properly arguable issues. The evidence from the Claimants themselves largely related to matters of which the Defendant would already have been broadly aware from the Particulars of Claim, but they provided more context and detail and they did (as further described below) raise one new area of factual dispute which had not as far as the Defendant is concerned been previously foreshadowed. Another new element was the expert report dated 3 February 2021, exhibited by Mr McBride. This was from an individual with some 23 years industry experience in providing financial advice, including as an independent mortgage broker. The report was expressed as containing a “ provisional” opinion and as having been prepared in compliance with CPR Part 35.
Permission has not at this stage been sought or given for expert evidence but it is reasonable to expect, given that this is a professional negligence claim against financial advisers, that such permission would be granted in due course were the matter to proceed to trial. On that basis, the expert report is relevant in showing that there is a reasonable expectation that the Claimants will be able to adduce favourable expert evidence at trial (whether or not precisely in this form). I do not read CPR 35.4 as precluding me from taking it into account for that strictly limited purpose or as requiring permission to be granted before I could do so. That rule must be applied consistently with the overriding objective. In these circumstances, as in Pipia v Bgeo Group Ltd [2019] EWHC 325 (Comm), that makes it appropriate for the Court to take a flexible approach, rather than requiring compliance with CPR 35. That flexibility is appropriate precisely because it cannot be the right approach, on a summary judgment application, to conduct any sort of mini trial of the expert evidence and the considerations are therefore not the same as those discussed by Marcus Smith J, in a different context where for example cross-examination of the experts might well be appropriate, in New Media Distribution Company Sezc Limited v Kagalovsky [2018] EWHC 2742 (Ch).
The late evidence is therefore relevant and to exclude it from consideration would be unjust to the Claimants. I had to consider whether the hearing should be adjourned in whole or in part in light of the late service of this evidence.
Mr Knibbs submitted that the Defendant might (and he put it no higher than that) want to adduce expert evidence of its own. He did not suggest that the Defendant would want to put in additional factual evidence. That was doubtless because one unfortunate result of the fact this action is brought so long after the events in question is that the Defendant by that time no longer had its file, which had been destroyed in the ordinary course of business, and the individual who gave the relevant advice and who would, as I understand it, have been the only person able to give evidence in response to that of the Rosses, is sadly deceased, having died before the Claimants made a complaint to FOS. Mr Knibbs asked either that the application be adjourned or dealt with on the basis solely of the limitation point.
Mr James, Counsel for the Claimants, was frank in accepting that the fault lay with the Claimants for not having served in good time but he questioned the utility of an adjournment, given that it would be wrong in principle to seek to resolve any disputed expert issues on a summary judgment application, and he opposed separating the limitation point from the rest of the application, on the footing that there is an overlap.
It seemed to me wholly unrealistic to suppose that any expert report in response (however pertinent and persuasive it might be if the matter goes to trial) could land a complete knock-out blow for summary judgment purposes and, to be fair, Mr Knibbs did not really press that point. He put it no higher than wanting to give this further consideration and, sensibly, did not want to definitively commit his clients to the expense of obtaining a report which at this stage could not, in my view, have advanced their cause on this application. If that expert, hypothetically, agreed with aspects of the Claimant's expert's report, that could not help the Defendant, and if he or she disagreed I would not be able to adjudicate at this stage as to who was right.
Equally, the Defendant will be no better off, in terms of demonstrating the Claimant's factual case to be unarguable, if the matter is adjourned, since there is no further factual evidence they can muster on their side at this stage. Any such attack on the factual case must either be capable of being made good on the face of the evidence, as it stands now, or will depend on disclosure and/or cross examination at trial.
The heart of the Defendant's application really lies in the limitation point, but, as that has to be addressed on the basis of identifying accurately how the Claimants do, or reasonably could, put their claim, it does not make sense to seek to separate it from the broader question of whether, subject to limitation, there is an arguable claim (and if so what). Seeking to deal with the application in two bites rather than one risked unnecessarily incurring additional costs and encountering difficulty as to areas of potential overlap.
In those circumstances, I determined that I should admit the late evidence and refuse an adjournment, on the basis that the entire application could without injustice to the Defendant be dealt with now and, depending on the outcome of the application, the late service of the evidence could if necessary be taken into account when considering costs.
I therefore turn to the substantive application.
Factual background
The Claimants claim, as damages for negligent advice in respect of the remortgage of their home in May 2007, the sum of £250,995, that being the entire capital sum of their interest-only mortgage. I shall come back later to whether that could be the correct quantum of any claim. Mr Ross was, according to his witness statement, a self-employed Investment Manager at the time of the remortgage, having begun investing in stocks and shares in 2001. On his own evidence he was someone with some financial know how, as for example shown by his comment that although credit was relatively easy to come by at that time, and financial institutions were relaxed about lending criteria, a self-employed applicant could be assisted by having a mortgage broker. Mr Ross says, and for the purposes of this application I accept, that despite that general know how he was...
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